The Manafort Raid and the Privilege Fights To Come

Last week, multiple media sourcesreported that as part of Special Counsel Robert Mueller’s Russia inquiry, investigators executed a court-authorized search warrant at the Alexandria, Virginia home of Paul J. Manafort, President Trump’s former campaign chairman. Shortly after these reports surfaced, John Dowd, who represents President Trump in the Russia inquiry, sent an email to at least one Wall Street Journal reporter calling the raid a “gross abuse of the judicial process” more akin to methods “found and employed in Russia not America.” Mr. Dowd also suggested that problems with the raid could lead to a “Motion to Suppress the fruits of the search.” It will likely be many months before a court could be called upon to decide a suppression motion, but Mr. Dowd’s comments give clues as to some issues that might arise on such a motion, and also highlight challenges facing the Special Counsel.

Mr. Dowd alleged in his email that Mr. Manafort’s Alexandria home contained “privileged and confidential materials prepared for Mr. Manafort by his counsel to aid him in his cooperation with the Congressional committees.” In fact, materials prepared by counsel for Mr. Manafort may not be the only potentially privileged materials at the location: Mr. Manafort himself is an attorney with an active bar membership in Connecticut, and according to Connecticut’s attorney roll, Manafort maintains his law office at what appears likely to be the Alexandria location that agents reportedly searched. Although there is little public information indicating that Mr. Manafort was actively engaged in the practice of law, there could arguably be privileged records at the Alexandria location that Mr. Manafort himself generated.

The presence of potentially privileged materials at Mr. Manafort’s property has important implications for how agents should have conducted the search, how agents and prosecutors should review the seized materials, and how any eventual litigation could unfold. Contrary to Mr. Dowd’s suggestion, the mere presence of potentially privileged materials at a location does not preclude agents from searching that location; nor does the presence of such materials at the site of a search require that any evidence obtained in the search be suppressed. Still, when the location to be searched belongs to an attorney, the government must follow certain procedures.

In particular, Section 9-13.420 of the Department of Justice’s United States Attorney’s Manual applies to searches of premises of attorneys—such as Mr. Manafort—who are subjects of investigations, and sets forth detailed guidelines for agents and prosecutors to follow. The following provisions of Section 9-13.420 appear particularly relevant here:

First, before conducting a search of a lawyer’s property, prosecutors must explore “alternatives to search warrants,” such as subpoenas, in order “to avoid impinging on valid attorney-client relationships.” The Manual states that “prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice at law.” There’s little in the public record—aside from an active Connecticut law license—to indicate that Mr. Manafort was “actively engaged in the practice of law.” Nevertheless, in his press email, Mr. Dowd criticized the “failures by Special Counsel to exhaust less intrusive methods” as “a fatal flaw in the warrant process”—language that echoes the provision of the Manual applicable to practicing attorneys. Although the provisions of the Manual are not legally enforceable rights, the extent to which the Special Counsel considered other methods still could become an issue in any eventual litigation.

Second, according to the Manual, prosecutors must design procedures “to ensure that privileged materials are not improperly viewed, seized, or retained during the course of the search.” Among other things, these procedures can require that prosecutors use a “privilege team” “consisting of agents and lawyers not involved in the underlying investigation” that can make privilege determinations before turning materials over to the agents and lawyers involved in the investigation. It is not clear whether Mr. Mueller’s team—at least 15 strong—includes a group of lawyers and agents performing a privilege review function, but such a team may ultimately be necessary, as it would help guard against any future claim that the Special Counsel’s investigation was tainted by exposure to privileged documents. Further, as two of my colleagues wrote in a recent article, even taint teams can be insufficient to protect the attorney-client privilege, so the Special Counsel’s team may well face litigation risk even if it includes a taint team.

Third, prosecutors must ensure that the search warrant is “drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.” In other words, the warrant itself must be written in such a way that it authorizes the seizure only of those materials actually relevant to the investigation at hand. Thus, in any suppression litigation, the party seeking suppression could challenge not only the procedures employed in conducting the search, but the breadth of the warrant itself.

Finally, according to the Manual, prosecutors must “discuss” the following “review procedures” prior to the approval of a warrant to search premises belonging to an attorney, including “[w]ho will conduct the review”; “[w]hether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege”; “[w]hether copies of all seized materials will be provided to the subject attorney (or a legal representative)”; and “[w]hether appropriate arrangements have been made for storage and handling of electronic evidence.”

The answers to these questions vary depending on the nature of the underlying investigation, but they are important questions that prosecutors and agents must consider, or risk tainting the fruits of a search. Given Mr. Dowd’s comments about the warrant in his press email, it is likely that the Special Counsel’s team is already working out how to protect against any claim of privilege. On the opposite side, Mr. Manafort and his team may be investigating the privilege claims they could employ to challenge the Special Counsel’s use of the seized materials.

More broadly, the privilege issues raised by the raid on Mr. Manafort’s property highlight the need for both prosecutors and defense attorneys—in any case—to consider the implications of potential privilege claims at the earliest possible stage.